A provincial status for Gilgit-Baltistan, conditional on the final resolution of the Kashmir conflict on the basis of a plebiscite, shall not take away from Pakistan’s principled stand in the UN

As the Prime Minister made his way to the Gilgit-Baltistan Legislative Assembly, as it was known then, he was greeted along the way by locals waving shoes in the air. The Prime Minister was making his way to the Assembly to unveil the Government of Gilgit-Baltistan Order, 2018. Unsurprisingly, he was taken aback by the protests, and could not understand as to why the locals were so unhappy with a law which was supposedly bringing them at par with the rest of the country.

But in actuality, it was not. The 2018 Order, for what it’s worth, does in fact make efforts to establish a system similar to that present in the four provinces of Pakistan, albeit, without affording provincial status to the region. And that is where the problem lies.

As is known to many, the people of Gilgit-Baltistan have been demanding integration into Pakistan as its fifth province for over 70 years. However, on each occasion that such a demand has arisen, it has been shot down on the basis of a single rationale. This rationale dictates that the people of Gilgit-Baltistan can’t be granted provincial status until the final resolution of the Kashmir dispute, and that any attempt to do so would undermine and weaken Pakistan’s ‘principled’ stance vis-à-vis the UN Resolutions. This argument has gained traction as the UN Resolutions appear to lump both areas together, and treat them as one and the same.

The UN Resolution dated 21.04.1948, as well as the others, were passed under Chapter VI of the UN Charter, which in effect, deals with non-binding resolutions. In this resolution, the UN Security Council had ‘recommended’ for the demilitarization of the Kashmir territory, after which arrangements for a plebiscite would take place. Pakistan was to ensure that all those tribal people and other Pakistani nationals who had infiltrated Kashmir for purposes of fighting would leave the area. During the course of such evacuation, India and the U.N. Commission would then discuss and finalize a demilitarization plan for India, which interestingly, did not require total withdrawal. As per the UN recommended plan, India would be allowed to retain a minimal level of forces in the area.

Nehru stated that the “fate of the State of Jammu & Kashmir is ultimately to be decided by the people. The pledge we have given not only to people of Kashmir but also to the world. We will not, and cannot, back out of it”

After this, another UN Resolution dated 13.08.1948 was passed, which contained the terms of the ceasefire between India and Pakistan. This resolution acknowledged the penetration of Pakistani regular troops into Gilgit-Baltistan and Azad Kashmir, and termed such an event as constituting a ‘material change’ in the situation on the ground. As such, the UN had sought for Pakistan to withdraw all its troops from the area, as well as all remaining Pakistani nationals. After this was done, the said area was to be governed by local authorities. On the other side of the defacto border, India would be required to draw up a plan with the Commission for demilitarization on its side.

As history would have it, Pakistan and India, from 1948 onwards, have been quarrelling over the interpretation of such aspects of the resolutions, and in particular, the mode of demilitarization. India contends that the withdrawal of Pakistani forces was a sine qua non to any plebiscite, whereas the Pakistani side claims that Pakistani forces were required to complete the withdrawal only upon India finalizing a plan for demilitarization on its side of the defacto border.

Interestingly, whereas both sides had disputed the manner by which demilitarization was to take place, neither had denied the validity of the plebiscite itself. It has always been Pakistan’s stated position that a plebiscite must be held in Kashmir. It is also a fact that India was not only the party to bring the dispute to the Security Council, it had also acknowledged the validity of the plebiscite on several occasions after the passage of the resolutions. This was acknowledged in UN Resolutions dated 05.01.1949 and 14.03.1950, which unequivocally noted the acceptance of the plebiscite demand by both India and Pakistan. Furthermore, Nehru is reported to have stated on November 2, 1947, whilst speaking on All India Radio, that the “fate of the State of Jammu & Kashmir is ultimately to be decided by the people. The pledge we have given not only to people of Kashmir but also to the world. We will not and cannot back out of it”. Thereafter, on November 25, 1947, Nehru informed the Indian parliament that “we have suggested that when people of Kashmir are given a chance to decide their future, this should be done under the supervision of an impartial tribunal such as United Nations Organization”.

Hence, certain points become palpably clear in regard to the resolutions and Pakistan’s position in relation to them. The resolutions appear to be non-binding in nature, thereby meaning that the Security Council cannot enforce them. However, upon acceptance by both sides, aspects of the resolutions would certainly become binding in regards to the parties themselves. As such, the holding of the plebiscite, as espoused by the UN Security Council, was binding inter se the parties as a result of their acceptance, however aspects pertaining to the manner of demilitarization, by virtue of being disputed and under disagreement, were not. The lack of agreement on this aspect was also noted in UN Resolution dated 10.11.1951 and other resolutions, which call upon the two countries to come to an agreement on the mode of demilitarization.

As such, until the mode of demilitarization is agreed upon between the parties, as stated in the UN Resolutions itself, the said aspects of the resolutions cannot be effective or enforceable. Hence, in the meantime, Pakistan would be well within its rights to afford the people of Gilgit-Baltistan a governance system which best protects and furthers their rights. Doing so would not be in violation of any UN mandate, nor would it infringe upon Pakistan’s principled stand. If anything, such an action would instead help further their cause.

In fact, it may be noted that even if Gilgit-Baltistan was to be considered a non-self-governing territory for purposes of the UN Charter, such as Puerto Rico, even then, Pakistan would be obligated to keep the interests of its inhabitants paramount, with utmost attention to be paid to providing them with self-governance, as is their desire.

Keeping all this in mind, a provincial status for the region, conditional on the final resolution of the conflict on the basis of a plebiscite, shall not take away from Pakistan’s principled stand. The people of Gilgit-Baltistan are entitled to representation in the institutions which are to make decisions for them, and a stake in the affairs of the entity which governs them. Affording them such a status would go a long way in addressing the growing concerns of the local populace. And it would also go a long way in dispelling the unfortunate perception that is developing, which is that the state seems confused, straddling those who seek to leave the Federation, and distancing and alienating those who earnestly desire to be Pakistanis in the truest sense of the word.

By Basil Nabi Malik

The writer is a Karachi based lawyer. He can be reached at basil.nabi@gmail.com. Twitter: @basilnabi

Published in Daily Times, June 8th 2018.